The Corporate Manslaughter and Corporate Homicide Act of 2007 — which took effect on April 6, 2008, across the United Kingdom — established that an organization could be found criminally liable in instances where a gross failure in the way activities were managed or organized results in a person's death.

The law applies to a wide range of organizations across the public and private sectors, including fire and rescue services. In England, Wales and Northern Ireland, the new offense is called corporate manslaughter. It is called corporate homicide in Scotland. The law allows courts to evaluate management systems and practices across organizations, providing a more-effective means for prosecuting the worst corporate failures to manage health and safety properly.

It also provides an opportunity for employers to rethink how risks are managed. While the law does not require organizations to comply with new regulatory standards, organizations should ensure that they are taking proper steps to meet current legal duties. Clearly, the law's inception has meant that those who disregard the safety of others at work, with fatal consequences, are more vulnerable to very serious criminal charges.

Understanding the Offense

An organization is guilty of the new offense if the way in which its activities are managed or organized causes a death. Such an event would amount to a gross breach regarding the organization's duty of care to the deceased.

For example, a duty of care exists regarding the work systems used by the organization, the equipment used by employees, the condition of worksites and other premises occupied by the organization, and products or services supplied to customers. The act does not create new duties — they already are owed in the civil law of negligence and the new offense is based on these.

However, juries now have to consider how the fatal activity was managed throughout the entity, including any safety-oriented systems and processes, and how these were operated in practice. For an organization to be found guilty under this law, a substantial part of the failure within the organization must have been at a senior level, i.e., the people who make significant decisions about the organization or substantial parts of it. This includes both headquarters personnel as well as those in operational management roles.

For an organization to be found criminally liable, its conduct must have fallen far below what could have been reasonably expected. Juries must take into account any health and safety breaches by the organization — and determine how serious and dangerous those failures were.

Sidebar: Where it Has Happened

An organization that is found guilty of this offense is subject to a fine of an unlimited amount. The law also provides for courts to impose a publicity order, which would require the organization to publicize the details of its conviction and fine. Courts also may require an organization to take steps to address the failures that caused the death, which is known as a remedial order.

The offense does not apply to certain public and government functions whose management involves wider questions of public policy and which already are subject to other forms of accountability. For example, it does not apply to strategic decisions about the spending of public money or military operations. Moreover, consent of the relevant director of public prosecutions is needed in England, Wales and Northern Ireland, before a case of corporate manslaughter or homicide can be taken to court.

The following are key questions related to the law and its application:

• Who is covered by the law? It applies to all companies, partnerships and other corporate bodies that employ personnel — as well as to trade unions and employers' associations — operating in the U.K., in both the private and public sectors. It also applies to government agencies, including police and fire.
• What do organizations need to do to comply with the law? All employers already must comply with health and safety legislation and this law does not affect those requirements. However, the introduction of the new offense is an opportunity for employers to ensure that their systems and processes for managing health and safety are adequate.

For guidance on health and safety duties and how to meet them, employers should contact the relevant regulatory authority.

Can directors, senior managers or other individuals be prosecuted for the offense? No. The offense is aimed at cases where management failures lie across an organization and it is the organization itself that will face prosecution.

However, individuals already can be prosecuted for gross-negligence manslaughter/culpable homicide, as well as for health and safety offenses, and those found guilty can end up in prison. The law does not change this, and prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.

Can the offense be avoided by senior managers who delegate responsibility for health and safety? No. Failures by senior managers to manage health and safety adequately, including those stemming from inappropriate delegation of such matters, will leave organizations vulnerable to corporate manslaughter/homicide charges.

Sidebar: Charges Arise in Wildland Sector

Senior managers should ensure that they and their organizations are complying with current health and safety laws. New guidance is being created jointly by the Institute of Directors and the Health and Safety Commission, and will be published U.K.–wide later this year.

The Likely Consequences

Employers have a legal duty to report certain incidents at work, including work-related deaths. The police will lead an investigation if a criminal offense as defined by this law is suspected. They will work in partnership with relevant local and regulatory authorities.

The government expects that cases of corporate manslaughter/homicide following a death at work will be rare, as this law is intended to cover only the worst instances of failure to properly manage health and safety across an organization. However, health and safety charges may be brought at the same time as a prosecution for corporate manslaughter/homicide, as well as in cases where such a charge is not prosecuted.

Fire and rescue services in the U.K. do not operate under any "Good Samaritan" laws. Consequently, should a firefighter be seriously or fatally injured during an operational incident or during training, the organization and individuals could be found liable under both the Health and Safety at Work Act, with the former potentially liable under the Corporate Manslaughter and Corporate Homicide Act. Again, the outcome of any proceedings could be an unlimited fine on the organization or individual(s), or imprisonment of the latter. Either outcome then leaves both liable for civil claims for damages.

Following several recent incidents that have resulted in firefighter fatalities, the fire and rescue service across the U.K. is bracing itself for the first cases to be prosecuted under the new legislation, how the courts will interpret the new law, and the sentences that will be meted out should convictions occur. Regardless of the outcomes, the manslaughter/homicide legislation clearly has spawned a strange new world for fire departments and those who lead them.

Howard Robinson is the assistant chief and director of corporate resources for the Leicestershire (U.K.) Fire and Rescue Service.

So, Could it Happen Here?

FIRE CHIEF asked attorneys Jim Juneau and Phil Stittleburg whether legislation similar to the U.K.'s Corporate Man-slaughter and Corporate Homicide Act is likely — or even feasible — in the United States.

• Jim Juneau: Prosecuting Corporations for Wrongful Deaths is Difficult
• Phil Stittleburg: U.S. Not Likely to See Similar Prosecutions